Nelson and Repatriation Commission [2002] AATA 120 (27 February 2002)

Last Updated: 28 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 120

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1194

VETERANS' APPEALS DIVISION )

Re LESLIE GEORGE MAURICE NELSON Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell

Date 27 February 2002

Place Sydney

Decision The Tribunal determines that the decision of the Respondent dated 4 March 1999 ("the reviewable decision") is varied so that: 1. that part of the reviewable decision which determined that the condition of peptic ulcer disease is not a war-caused disease is affirmed; and 2. that part of the reviewable decision which determined that the condition of gastro-oesophageal reflux is not a war-caused disease is set aside and in substitution therefor the Tribunal determines that: (a) the condition of gastro-oesophageal reflux is a war-caused disease; and (b) the war-caused disease of gastro-oesophageal reflux disease is remitted to the Respondent for assessment, with the date of effect for any increase in disability pension that may arise as a result of the assessment being 12 May 1999.

[SGD] Dr J D Campbell

Member

CATCHWORDS

Veterans' Entitlements - application for acceptance of gastro-oesophageal reflux disease and duodenal ulcer as war-caused disabilities - application for increase in disability pension

Veterans' Entitlements Act 1986 - sections 120, 120B

Statement of Principles Instrument No. 62 of 1999, concerning Gastro-Oesophageal Reflux Disease

Statement of Principles Instrument No.121 of 1995, concerning Gastro-Oesophageal Reflux Disease

Statement of Principles Instrument No. 21 of 1999, concerning Peptic Ulcer Disease

Statement of Principles Instrument No. 9 of 1994, concerning peptic Ulcer Disease, as amended by Statement of Principles Instrument No 217 of 1995

Statement of Principles Instrument No. 42 of 1999, concerning Hiatus Hernia

REASONS FOR DECISION

Dr J D Campbell, Member

1. In this matter, Mr Leslie Nelson ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 4 March 1999 in which the Applicant's claim that his gastro-oesophageal reflux disease and peptic ulcer disease were war-caused disabilities was denied, but the Applicant's disability pension for accepted war-caused diseases was increased to 80 per cent of the General rate with effect from 4 November 1998. These two determinations were affirmed in a decision made by the Veterans' Review Board ("VRB") on 14 June 2000.

2. A hearing was held before the Tribunal on 4 October 2001 at which the Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Ms Hardie, an advocate from the Department of Veterans' Affairs. The Applicant and two specialist gastroenterologists, Professor Bolin and Dr Marinos presented oral evidence before the Tribunal.

3. The following material was placed into evidence before the Tribunal:

Exhibit No Description Date

T1-16 pp1-64 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1 Statement of Applicant 8 February 2001

A2 Medical report of Professor Bolin 10 May 2001

A3 Applicant's amended Statement of Facts and Contentions 2 October 2001

A4 Booklet on indigestion/heartburn - Gut Foundation 2001

R1 Clinical notes of Dr Koh

R2 Medical report of Dr G Marinos 7 February 2001

R3 Respondent's Statement of Facts and Contentions 2 October 2001

R4 Material prepared by RMA Secretariat and e-mail (9 pages) March 1999

issues

4. The particular issues in this matter are whether the conditions of gastro- oesophageal reflux disease and peptic ulcer disease are war-caused diseases.

legislation

5. The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 120(1), 120(3) and 120B.

background

6. The Applicant has had the following diseases/injuries accepted as war-caused disabilities:

* malaria;

* bilateral sensorineural hearing loss; and

* ischaemic heart disease.

7. On 4 December 1998 the Applicant lodged a claim with the Respondent in which he requested (T6):

(a) the diseases of gastro-oesophageal reflux and duodenal ulcers be accepted as war-caused diseases; and

(b) consideration be given for an increase in disability pension for his previously accepted disabilities.

8. On 12 January 1999, Dr Koh, the Applicant's attending general practitioner, completed a medical report (T7). In relation to the two disabilities, Dr Koh noted that the Applicant's symptoms were indigestion, which had been investigated by Dr Cowlishaw, a consultant gastroenterologist at Concord Hospital on 12 March 1996. The investigations at that time revealed oesophageal ulceration, and the Applicant was treated with losec. Diagnosis was nominated as gastro-oesophageal reflux disease and duodenal erosion, with the clinical onset of the peptic ulcer disease being nominated as June 1995 and that stress may have been the cause or contributed to the cause of the peptic ulcer disease.

9. On 4 March 1999, the Respondent refused the Applicant's claim in relation to the gastro-oesophageal reflux disease and peptic ulcer disease, but increased his disability pension to 80 percent of the General rate with effect from 4 December 1998 (T8).

10. The Applicant lodged an appeal with the VRB on 12 November 1999 against the decision of the Respondent citing his belief that there was a smoking related history to his rejected disabilities and that his operational service was extremely stressful (T9).

11. The VRB affirmed both determinations of the Respondent in its decision of 14 June 2000, stating that (T11):

"There is nothing in the available material to raise a reasonable hypothesis of a causal link between the Veteran's sliding hiatus hernia and the circumstances of his service."

In relation to the peptic ulcer disease, the VRB stated that:

"There is nothing in the available material to suggest the possible application of any other factor in either Statement of Principles".

applicant's evidence

12. Mr Nelson told the Tribunal that he was born on 1 September 1923 and that he joined the Army in 1941 and served in New Guinea prior to his discharge in 1946.

13. Mr Nelson told the Tribunal that he was a non-smoker prior to service, but commenced smoking at age 19, as everyone else was smoking. He stated that he commenced to have abdominal symptoms towards the end of his service or probably after he came out of the Army. Mr Nelson stated his abdominal symptoms got worse in the fifties and continued.

14. In relation to his smoking, Mr Nelson stated that he was still smoking when in Fiji in 1979, but within twelve months of that time he had ceased to smoke. The Applicant adhered to his statement (Exhibit A1), in which he stated:

* that he had never smoked cigarettes prior to enlistment;

* that he commenced smoking some six to seven months after his enlistment, and smoked at the rate of 10 cigarettes per day;

* that his consumption increased during his posting as a dispatch rider in New Guinea;

* that his tobacco consumption peaked at 20 cigarettes per day and that he continued to smoke after leaving the Army;

* that he first noted symptoms that he associates with gastro-oesophageal reflux and peptic ulcer disease sometime after commencing smoking in the Army. He described these symptoms as heartburn or indigestion and that he has used antacids from and including the time he was serving in the Army; and

* that he stopped smoking because of symptoms of indigestion and that he thought this had occurred in 1979/80, rather that in the mid 1970s as earlier indicated.

15. In response to questions in cross-examination, the Applicant stated that he had made mistakes when he said in 1997 that he had stopped smoking 30 years ago (Exhibit R1, p52) and in 1987 when he stated that he had stopped smoking some 15 years ago (Exhibit R4, p72). Further, the Applicant stated that when he had stated he had ceased smoking when approximately 50 years of age (T5), and approximately 20 years ago in 1997 (T5, p12) emphasis should be placed on the word 'approximately'.

clinical evidence

dr koh

16. The clinical notes of Dr Koh reveal the following relevant information:

* 20 December 1988 - bad heartburn, barium meal recorded in Dr Koh's notes (Exhibit R1, p9).

* Barium meal on 29 December 1989 reported by Dr Goldin (Exhibit R1, p83):

"...There is a large irreducible sliding hiatus hernia with marked gastro-oesophageal reflux. Irregularity of the distal oesophageal mucosa is consistent with oesphagitis.

The stomach and duodenum are normal. There is no evidence of peptic ulceration or any other abnormality."

* In a report to Dr Koh by Dr Simpson on 29 September 1996 it is noted that "Mr Nelson first developed symptoms in 1989 and had a barium meal...Endoscopy arranged." (Exhibit R1, p57).

* Endoscopy report dated 25 March 1996 by Dr Cowlishaw, consultant gastroenterologist, (Exhibit R1 p56), stated:

"There was a 3cm oesophageal ulceration. There was a large hiatus hernia of approximately 8cm, as well as numerous erosions situated in the duodenal cap..."

* On 30 May 1996 Dr Cowlishaw in his report to Dr Koh stated (Exhibit R1, p 54):

"From a reflux point of view, Mr Nelson currently is completely asymptomatic and I would suggest he continue Losec 20 mg daily indefinitely."

professor bolin

17. In his report dated 10 May 2001, Professor Bolin, a consultant gastroenterologist, recorded that Mr Nelson had a long history of heartburn and indigestion. Professor Bolin noted the findings at endoscopy performed by Dr Cowlishaw and opined that both the oesophageal and duodenal erosions may well have been aggravated by the concurrent use of NSAIDs. Professor Bolin opined (Exhibit A2):

"Most individuals with a significant hiatus hernia such as this have long-standing symptoms and I think it a perfectly reasonable hypothesis to imagine that such an anatomical problem could well have caused symptoms of reflux and heartburn during the period of his Army service.

The fact that he began smoking after joining the Army may well have aggravated the problem."

18. In oral evidence before the Tribunal, Professor Bolin stated that he had noted that Mr Nelson's history of heartburn had commenced after he had left the Army and probably by the early 1950s. Professor Bolin opined that the endoscopic findings by Dr Cowlishaw in March 1996, of multiple erosions in the duodenal cap, were consistent with peptic ulceration with the date of clinical onset of the peptic ulcer condition somewhere between 1989 and 1996. Professor Bolin stated that there was no evidence of a chronic duodenal ulcer, and that the erosions may be associated with other concurrent drug therapy. Professor Bolin considered that the findings at barium meal in December 1989 were much more consistent with the symptoms of reflux oesophagitis, and, in his opinion, that the clinical onset of such symptoms was in the late 1940's early 1950's.

19. In cross-examination, Professor Bolin commented that there were no time frames available to permit a diagnosis of chronic duodenal ulcer, and that smoking aggravated the symptoms of oesophageal reflux.

dr marinos

20. In a report dated 7 February 2001 (Exhibit R2), Dr Marinos, a consultant gastroenterologist, recorded Mr Nelson as being troubled with indigestion and heartburn for many years and that Mr Nelson had revealed using antacids (Rennies and Mylanta) soon after coming out of active service. Dr Marinos noted the findings of the barium meal in 1989 and the endoscopic examination in 1996 and concluded that the tiny erosions in the duodenal cap are almost certainly related to the use of NSAIDs, with Mr Nelson having no symptoms or evidence of peptic ulcer disease. Dr Marinos also commented that the combination of NSAIDs and aspirin almost certainly contributed to the deterioration of his gastro-oesophageal reflux disease.

21. Dr Marinos accepted that smoking exacerbates gastro-oesophageal reflux disease and that stopping smoking usually helps resolve oesophagitis. However, he concluded that while Mr Nelson had smoked between 1941 and 1979, his reflux symptoms were controlled by antacids until 1988 and did not warrant intervention. Further, he stated that the deterioration in Mr Nelson's symptomatology did not occur until he started medication with NSAIDS in 1987.

22. Dr Marinos also stated that a definite contributory factor to Mr Nelson's gastro-oesophageal reflux disease was the presence of a large hiatus hernia, but that the Applicant's war service has no causal relationship to the development of his hiatus hernia (Exhibit R2).

23. In oral evidence, Dr Marinos concluded that the Applicant did not suffer from peptic ulcer disease, nor had he symptoms of, or been investigated for, the disease. Further, he stated that the incidental findings of erosions represented abrasions as opposed to absence of the mucosal lining. Dr Marinos concluded that Mr Nelson suffered no incapacity from the duodenal erosion's, and has remained symptom free while on current medication for his gastro-oesophageal reflux disease. Dr Marinos also commented that the Applicant's history in 1996(?) is a classical history of heartburn with the clinical onset of gastro-oesophageal reflux disease occurring in late 1988, with such a diagnosis being made on the patient's history and confirmed by appropriate investigations.

submissions

applicant

24. Counsel for the Applicant submitted that the Applicant suffers from hiatus hernia, gastro-oesophageal reflux disease and peptic ulcer disease, and that the Applicant's gastro-oesophageal reflux disease is caused by his hiatus hernia. Counsel submitted that as there was no statement of principles in force concerning hiatus hernia at the date of the primary decision, the Applicant may raise a reasonable hypothesis without regard to any subsequent Statement of Principles ("SoP").

25. Counsel submitted that the Applicant had a war-caused smoking habit and that the Applicant's hiatus hernia was caused, contributed to, or aggravated by, his smoking habit. As such it is contended that the Applicant satisfies both factor 5(b) of SoP Instrument No 62 of 1999 or, alternatively, factor 1(c) of Instrument No 121 of 1995, each of which raises hiatus hernia as a causative factor in relation to gastro-oesophageal reflux disease.

26. In the alternative, Counsel contended that the Applicant satisfies factors 5(f) of Instrument No 62 of 1999 or, in the alternative, factor 1(j) of Instrument No 121 of 1995, each of which raises a history of smoking as a causative factor in relation to gastro-oesophageal reflux disease. Further, Counsel contended that the Applicant satisfies factor 5(k) of Instrument No 62 of 1999 or, in the alternative, factor 1(m) of Instrument No 121 of 1995, each of which raises smoking as an aggravating factor in relation to gastro-oesophageal reflux disease.

27. In relation to the peptic ulcer disease, Counsel submitted that the disease was caused, contributed to, or aggravated by, his war service in that the Applicant raises factor 5(c) in Instrument No 21 of 1999 or, in the alternative, factor 1(b) in Instrument No 9 of 1994 as amended by Instrument No 217 of 1995, each of which raises a history of smoking in relation to peptic ulcer disease. The Applicant also contended that his service raises a history of stressful circumstances, which raises factor 1(e) in Instrument No 9 of 1994.

respondent

28. The Respondent contended that the Applicant has symptoms of gastro-oesophageal gastric reflux and that he does not satisfy the SoP for gastro-oesophageal reflux disease, whether it is either Instrument No 121 of 1995 or Instrument No 62 of 1999.

29. Further, the Respondent contended that the Applicant does not suffer from peptic ulcer disease.

30. The Respondent, in conceding that the Applicant's smoking was a war-caused habit, relied upon the opinion of Dr Marinos in concluding that the Applicant had ceased smoking well prior to the clinical onset or clinical worsening of his gastro-oesophageal reflux disease, and that the Applicant's hiatus hernia was not caused or contributed to by the Applicant's operational service.

consideration and findings

31. The Tribunal, in noting that the Applicant experienced operational service in World War II, concludes that the standard of proof in determining whether the Applicant's diseases are connected to the circumstances of his service is one of reasonable hypothesis, while the standard of proof as to which disease and/or injury exists is one of reasonable satisfaction.

32. In addressing the question of which diseases the Applicant suffers from, the Tribunal notes the clinical evidence which is before it and determines that the Applicant has the following diseases:

(a) hiatus hernia - large sliding hiatus hernia as demonstrated on barium meal in December 1989 and at endoscopy in March 1996;

(b) gastro-oesophageal reflux - seen at endoscopy in March 1996 by Dr Cowlishaw and demonstrated on the barium meal in December 1989; and

(c) multiple small erosions of the duodenum - seen at endoscopy in March 1996.

33. The Tribunal notes that there is a difference of opinion between the two clinicians as to whether multiple small erosions of the duodenal cap can be considered to constitute peptic ulcer disease. This diagnostic issue will be considered by the Tribunal, within the definitional requirements of the relevant SoPs concerning peptic ulcer disease,. It is clear to the Tribunal that Professor Bolin was of the opinion that it might constitute peptic ulcer disease in defined circumstances, while Dr Marinos was of the opinion that the Applicant did not suffer from peptic ulcer disease.

34. In addressing all the material before it, the Tribunal observes that such material points to the following hypothesis:

(a) that the Applicant suffered from gastro-oesophageal reflux disease associated with a sliding hiatus hernia and the reflux disease was caused, materially contributed to, or aggravated by, his smoking habit; and

(b) that the Applicant's peptic ulcer disease was caused, materially contributed to, or aggravated by, his smoking habit.

35. The Tribunal notes the contention that the Applicant's hiatus hernia was war-caused, materially contributed to, or aggravated by, his war service. However, the Tribunal is unable to point to any material placed before it, or to infer from any such material, that the Applicant's hiatus hernia was caused, materially contributed to or aggravated by his war service. An assertion by the Applicant that such is the case is not sufficient to establish the hypothesis, particularly where Professor Bolin stated that in the presence of a hiatus hernia, symptoms of reflux and heartburn may have occurred during his Army service. The Tribunal notes that the symptoms that Professor Bolin referred to are the symptoms associated with gastro-oesophageal reflux disease, not that of a hiatus hernia.

36. Further, in preliminary analysis, the Tribunal notes the smoking history of the Applicant and the concession granted by the Respondent that the Applicant's smoking habit was war-caused. In examining all the issues, the Tribunal concludes, that the Applicant commenced smoking during service, increased his consumption during operational service and continued to smoke 20 cigarettes a day post service, until he ceased smoking sometime in the mid to late 1970s because of increasing symptomatology of indigestion and heartburn. In such circumstances the Tribunal does conclude that the Applicant's smoking habit was war-caused.

37. In addressing the hypothesis concerning gastro-oesophageal reflux disease, the Tribunal notes the following material that points to each element of the hypothesis:

(a) a smoking habit which commenced during service, increased during operational service and continued post service at some 20 cigarettes a day until the Veteran ceased smoking in the mid to late 1970s because of increasing indigestion and heartburn;

(b) clinical symptoms of heartburn and indigestion commencing shortly after cessation of service in the late 1940s/early 1950s, which were self-treated by the Applicant with various over-the-counter antacid medications; and

(c) cessation of smoking in the mid to late 1970s because of increasing symptomatology, with a definitive diagnosis of hiatus hernia and gastro-oesophageal reflux disease made in 1989 and confirmed at endoscopy in 1996.

38. The Tribunal is satisfied that the nominated material points to all elements of a hypothesis linking a smoking habit with the onset of gastro-oesophageal reflux disease and further linking a smoking habit, by way of cessation to relieve symptoms, at a time of clinical worsening of the gastro-oesophageal reflux disease.

39. In addressing whether the hypothesis is a reasonable hypothesis, the Tribunal notes the relevant SoP in this matter is Instrument No 62 of 1999, concerning gastro-oesophageal reflux disease, and the relevant factors are 5(b), 5(f) and 5(k). The nominated SoP is the current SoP at the time of this decision.

40. In considering the nominated factors, the Tribunal notes that factor 5(b) nominates suffering from a hiatus hernia at the time of clinical onset of gastro-oesophageal reflux disease. There is no dispute between the parties that the Applicant suffers from a hiatus hernia. The issue is whether it is war-caused. The Tribunal notes that the current SoP concerning hiatus hernia is Instrument No 42 of 1999, and it is clear that a reasonable hypothesis does not exist as the factor (5a) nominates a particular type of hiatus hernia which is incongruent with the sliding hiatus hernia in this matter. In short, the template nominated in the SoP is not satisfied and the hypothesis is not a reasonable hypothesis.

41. In further consideration, the Tribunal notes that the SoP Instrument No 121 of 1995, concerning gastro-oesophageal reflux disease, was the SoP in force at the time of the primary decision, and that this instrument contains factor 5(c), which is similar in content to factor 5(b) in the later instrument No 62 of 1999.

42. As indicated earlier in this decision, there is no material before the Tribunal which points to the hiatus hernia being caused by, materially contributed to, or aggravated by, the Applicant's service. It is clear to the Tribunal that the Applicant's war-caused smoking habit caused an increase in the symptoms of heartburn and indigestion, and that there were symptoms associated with the Applicant's gastro-oesophageal reflux disease, not his hiatus hernia. Accordingly, the Tribunal concludes that there is no material before it pointing to a hypothesis linking the Applicant's war-caused smoking habit with the causation of, material contribution to, or aggravation of, the Veteran's hiatus hernia. As such the Tribunal finds that the hiatus hernia is not a war-caused disease.

43. In returning to the other two factors nominated in Instrument No 62 of 1999, concerning gastro-oesophageal reflux disease, namely factor 5(f) and (k), the Tribunal notes that the Applicant has a war-caused smoking habit and that the material points to the clinical onset of the gastro-oesophageal reflux disease as being in the late 1940s/early 1950s at a time that the Applicant was still smoking 20 cigarettes a day. Having examined this material, the Tribunal concludes that such material satisfies the template nominated in factor 5(f) of Instrument No 62 of 1999. The Tribunal further concludes that the hypothesis nominated is a reasonable hypothesis.

44. Similarly, in relation to factor 5(k), the Tribunal observes that the material points to a clinical worsening of the Applicant's symptomatology in the mid to late 1970s to the extent that the Applicant ceased smoking. Again the Tribunal is satisfied that the material points to and satisfies the necessary elements nominated in factor 5(k) of Instrument No 62 of 1999. The Tribunal further concludes that the hypothesis nominated is a reasonable one.

45. The Tribunal must address whether there is any material before it which would disprove beyond reasonable doubt any of the facts upon which the hypothesis is formulated, or which would prove beyond reasonable doubt the existence of other facts which would be inconsistent with the facts contained within the hypothesis and thereby disprove it. In so doing, the Tribunal notes that Dr Marinos is of the opinion that the clinical onset of the gastro-oesophageal reflux disease was not until the late 1980s. The Tribunal, while noting the opinion of Dr Marinos, observes that this is inconsistent with the evidence of the Applicant and the opinion of Professor Bolin. Further, such an opinion does not, in the Tribunal's view, create such weight as to destroy the integrity of the Applicant's evidence and Professor Bolin's opinion.

46. As a consequence, the Tribunal concludes that the Veteran's gastro-oesophageal reflux disease is a war-caused disease.

47. In turning to the issue of peptic ulcer disease, the Tribunal notes that the two relevant SoPs concerning peptic ulcer disease are Instrument No 21 of 1999, being the SoP in force at the time of this decision, and Instrument No 9 of 1994 as amended by Instrument No 217 of 1995, being the SoP in force at the time of the primary decision.

48. The Tribunal notes that paragraph 2(b) of Instrument No 21 of 1999, concerning peptic ulcer disease, states:

"2(b) For the purposes of this Statement of Principles, "peptic ulcer disease" means chronic gastric ulcer or chronic duodenal ulcer where:

(i)...

(ii) chronic duodenal ulcer is a non malignant circumscribed loss of the mucous membrane lining the duodenum extending to the submucosa,

..."

49. The Tribunal also notes the opinions of Professor Bolin (who found no evidence of chronic duodenal ulcer), Dr Marinos (who found the Applicant did not suffer from peptic ulcer disease, did not have symptoms, or had not been investigated for the disease) and the endoscopic findings by Dr Cowlishaw in March 1996 (who found numerous small erosions in the duodenal cap). In noting these opinions and the SoP definition of peptic ulcer disease in Instrument No 21 of 1999 above, the Tribunal concludes that a diagnosis of peptic ulcer disease cannot be made on the balance of probabilities and therefore the Applicant's claim must fail if reliance is placed on this SoP.

50. However, the Tribunal also considers the earlier SoP, namely No 9 of 1994, as amended by No 217 of 1995, and in particular the definition of peptic ulcer disease in Instrument No 217 of 1995, which states:

"'Peptic ulcer disease' means a non malignant circumscribed loss of the mucous membrane lining the upper gastrointestinal tract due to the action of acid and pepsin, including gastric ulcer and duodenal ulcer..."

In considering the definition of the disease as noted in the amending SoP 217 of 1995, the Tribunal is satisfied that the material in this matter, including the opinion of Professor Bolin, permits the Tribunal to make a diagnosis of peptic ulcer disease on the balance of probabilities, as the erosions clearly caused loss of the mucous membrane but did not necessarily extend to the submucosa.

51. In noting the hypothesis pointed to by the material, namely that the Applicant's smoking habit caused, contributed to, or aggravated, the Applicant's peptic ulcer disease, the Tribunal notes factor 1(b) in Instrument No 9 of 1994. In examining the elements of factor 1(b) the Tribunal observes the Applicant's peptic ulcer disease as having a clinical onset at some time between 1989 and 1996. The material further points to the Applicant ceasing smoking in the mid to late 1970s.

52. As a consequence, the Tribunal is satisfied that the material does not point to or raise the necessary elements contained within factor 1(b) and as such the template is not met. The Tribunal concludes that the hypothesis is not a reasonable hypothesis and as such the Applicant's peptic ulcer disease is not war-caused.

determination

53. The Tribunal determines that the decision of the Respondent dated 4 March 1999 ("the reviewable decision") is varied so that:

1. that part of the reviewable decision which determined that the condition of peptic ulcer disease is not a war-caused disease is affirmed; and

2. that part of the reviewable decision which determined that the condition of gastro-oesophageal reflux is not a war-caused disease is set aside and in substitution therefor the Tribunal determines that:

(a) the condition of gastro-oesophageal reflux is a war-caused disease; and

(b) the war-caused disease of gastro-oesophageal reflux disease is remitted to the Respondent for assessment, with the date of effect for any increase in disability pension that may arise as a result of the assessment being 12 May 1999.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: .....................................................................................

Associate

Date of Hearing 4 October 2001

Date of Decision 27 February 2002

Counsel for the Applicant M Vincent

Solicitor for the Applicant M McCarthy

Counsel for the Respondent M Hardie

Solicitor for the Respondent J Marsh